UPDATE: The Supreme Court dismissed this case after both parties agreed to dismiss on February 10, 2012.

Original post from November 10, 2011:

The Supreme Court recently granted cert in Magner v. Gallagher, a case that will likely have implications for local governments. IMLA submitted an important amicus brief in this case, you can read our brief here and see a mention of our brief in a recent Forbes.com article.

Like many cities, St. Paul has a property maintenance code which establishes minimum maintenance standards for all structures, including provisions on light, ventilation, heating, sanitation, fire safety, etc. In 2002, the City established the Department of Neighborhood Housing and Property Improvement (DNHPI) as an executive department responsible for administering and enforcing the code.

The director of DNHPI increased the level of code enforcement target at rental properties, and directed proactive “sweeps” to detect code violations. DNHPI sought to compel property owners to take greater responsibility for their properties or, alternatively, force changes in ownership. To achieve its objectives, DNHPI employed a variety of strategies for renter-occupied dwellings, including orders to correct or abate conditions, condemnations, vacant-building registration, fees for excessive consumption of municipal services, tenant evictions, real-estate seizures, revocations of rental registrations, tenant-remedies actions, and if necessary, court action.

Plaintiffs in this case are essentially landlords, with portfolios ranging from one property to over forty properties. These landlords received code enforcement citations that in many cases, cited between ten and twenty-five violations per property. As a result, Plaintiffs claim they suffered increased maintenance costs, fees, condemnations, and were forced to sell properties in some instances.

Plaintiffs brought a number of claims (11 in total), and the district court dismissed all on summary judgment. The plaintiffs appealed to the Eighth Circuit Court of appeals, where the Court affirmed in all aspects except one. On review, the 8th Circuit held that disparate impact theory applied to a claim of racial discrimination under the FHA when a city applies its housing maintenance code to substandard housing, because the cost to repair tended to reduce housing options for people of color. The standard used by the 8th Circuit is that a plaintiff “must show a facially neutral policy ha[d] a significant adverse impact on members of a protected minority group.” Plaintiffs are NOT required to show that the policy or practice was formulated with discriminatory intent. The Circuits are split on this. The Seventh Circuit (and a few others have follow) includes the following factors to be used: (1) how strong is the plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis [426 U.S. 229 (1976)]; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.

Here’s the description provided on the NPR website of the audio feed: As the foreclosure crisis continues, derelict properties have become a growing problem in neighborhoods nationwide. Webster, Mass., has come up with an innovative way to deal with buildings deemed nuisances: posting the names and contact information of the owner in front of the property.

How is your community dealing with abandoned properties? Have any other communities tried posting a “wall of shame” on a owner’s abandoned property?

Do you recall the U.S. Supreme Court’s Rapanos decision in 2006 in which the Court split 4-1-4 on the extent of the federal government’s jurisdiction over wetlands under the Clean Water Act? That odd split, with Kennedy in the middle, left at least two possible tests for determination of jurisdiction and uncertainty that remains today.

The United States Court of Appeals, Fourth Circuit, on January 25th, handed down its decision in Precon Development Corporation Inc. the United States Army Corps of Engineers clearly showing how unclear the jurisdictional issue remains. http://pacer.ca4.uscourts.gov/opinion.pdf/092239.P.pdf

For background on the Rapanos decision and the fallout, click here and here.

The whole doctrinal disaster brings back fond memories the former Secretary of Defense Donald Rumsfeld, who famously said:

As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don’t know
We don’t know.

The Precon case arose over a dispute as to whether 4.8 acres of wetlands 7 miles from the nearest navigable water was subject to jurisdiction by the U.S. Army Corps of Engineers under the Clean Water Act. The Corps claimed jurisdiction and denied Precon’s application to impact the wetlands through development. Precon appealed and the federal district court granted summary judgment to the Corps upholding the Corps’ jurisdiction and permit denial.

Precon appealed the Corps’ jurisdictional determination and the Fourth Circuit vacated the District Court’s grant of summary judgment and remanded the case back to the District Court with instructions to remand the matter back to the Corps for reconsideration of its jurisdiction over the wetlands.

Precon is the developer of the 650-acre planned unit development known as Edinburgh in Chesapeake, Virginia. Between 2004 and 2006, Precon received Corps approval to fill 77 acres of wetlands for the development.

Precon later decided to develop 10 additional residential lots in Edinburgh, development that required impacting another 4.8 acres of wetlands. The Corps was not happy about Precon’s piecemealing the application by adding additional land. Precon said the Corps didn’t have jurisdiction over the 4.8 acres; the Corps said it did; and the issue was joined.

Landscapers, plumbers, electricians and carpenters were hard at work Sept. 17 putting the final touches on Edinburgh Meadows, the host site for this year's Homearama. (Steve Earley / The Virginian-Pilot)

The wetlands in question are next to a man-made drainage ditch that is 2,500 feet long, dug through wetlands with the dredge materials thrown up on the side creating a berm between the ditch and the 4.8 acres of wetlands.

Water in the ditch flows seasonally from late winter to early spring and connects with a perennial drainage ditch about 900 feet downstream from the site. That ditch runs along the boundary of the development for about 3,000 feet until it reaches a second perennial tributary 2 ½ to 3 miles south of the Edinburgh development. From there the merged tributaries flow into the Northwest River 3 or 4 miles downstream.

The Fourth Circuit accepts Kennedy’s “significant nexus” test as controlling in this case. The court’s analysis of the significant nexus determination takes several pages in the decision.

Interestingly, the Fourth Circuit decided that it should “treat compliance with Justice Kennedy’s ‘significant nexus’ test as a question of law, as we do any question of statutory interpretation, and review for compliance de novo…. However, recognizing the Corps’ expertise in administering the CWA, we give deference to its interpretation and application of Justice Kennedy’s test where appropriate.”

The court decided that the significant nexus test “does not require laboratory tests or any particular quantitative measurements in order to establish significance.” Interpreting Kennedy’s test, the court said that “he clearly intended for some evidence of both a nexus and its significance to be presented. Otherwise, it would be impossible to engage meaningfully in an examination of whether a wetland had ‘significant’ effects or merely ‘speculative or insubstantial’ effects on navigable waters.”

The court decided: “The question is thus whether the Corps’ record contained enough physical evidence -quantitative or qualitative – to allow us to uphold its determination that a significant nexus existed here.”

The court found that the record did not appear to contain any measurements of actual flow and that “even if the record had sufficiently documented flow, we do not believe that recitation of the flow of an adjacent tributary alone, absent any additional information regarding its significance, would necessarily suffice to establish a significant nexus…. Accordingly, we must conclude that this record does not support the Corps’ determination that the nexus that exists between the 448 acres of similarly situated wetlands and the Northwest River is ‘significant.’”

And so, case goes back to the trial court and from there back to the Corps.

DeKalb County, Georgia, can teach us all something about zoning enforcement. The zoning enforcement authorities cited Steve Miller for growing too many vegetables on his 2-acre lot in a residential zone. Actually, it’s not that he was growing the vegetables; it was that he was selling them at an off-site farmers’ market, you see, because that makes it a commercial activity. Isn’t there some federal law about transporting zucchini over county lines for the purpose of illegal sale?

Here is that miscreant, Steve Miller, in a head shot you’re likely to see soon on the post office wall. I mean, look at him – would you trust him with a site plan approval or even a 2-foot side yard variance?

And here’s the evidence, clear proof of his illegal activities and egregious flaunting of the rule of law:

Here is even more damning evidence unearthed by WSB-TV. The county peppered Steve Miller with its proof of the violation.

WSB-TV

The crime scene is here (I’m surprised they didn’t have the SWAT team with those police helicopters and their powerful lights at this harrowing event…):

And finally, from our friends at bing.com after getting the exact address from 411.com, we have this shot of the unspeakable horror:

You can bet your prize winning pole beans that if there is a CSI Atlanta they’ll be able to help nail the next crazy man who thinks he can get away with this kind of crime, right in front of the neighbors. Actually, the neighbors apparently like it: “When he moved here and I found out what he was doing I said, ‘Steve, you’re the best thing that ever happened to Cimarron Drive. And I still say that,” said neighbor Britt Fayssoux. http://www.wsbtv.com/news/24979774/detail.html

The display of yellow ribbons in remembrance of friends and family serving far away goes back hundreds of years. Dr. Gavin Finley has an interesting website on the history. The American Folklore Center at The Library of Congress has more intriguing history and also cites the 1949 John Wayne and Joanne Dru film, She Wore a Yellow Ribbon.

As only Congressional folklorists could, they get a bit carried away. I got lost when I hit this line: “The second aspect that makes folklorists reluctant to view this as a traditional expression is the matter of structural inversion.” I leave it to your further study.

Sing along with me, if you will, this 400-year-old tune, in an arrangement by the incomparable Andrews Sisters. It reflects the popular view of what the yellow ribbon used to represent before it took on its current meaning. Or you can listen to it here.

She Wore A Yellow Ribbon

By Russ Morgan
Sung by the Andrews Sisters

Round her neck she wore a yellow ribbon
She wore it in the winter
And the merry month of May
When I asked her, Why the yellow ribbon?
She said, It’s for my lover who is far far away

When, at first, she met a winsome Johnny
He wasn’t sure her heart was pure
Her eyes were far too bold
So, round her neck
He tied a yellow ribbon
He tied a yellow ribbon
‘Cause it matched her hair of gold
Hair of gold, hair of gold
He tied a yellow ribbon
‘Cause it matched her hair of gold
Hair of gold, hair of gold
He tied a yellow ribbon
For her eyes were far too bold

If, perchance, you spy a lovely maiden
And by her side, there walks with pride
A Johnny strong and gay
And round her neck there is a yellow ribbon
No matter how you love her
Please stay far far away

Back to the issue at hand. The Hartford Courant reports that the Borough of Litchfield, Connecticut, has banned yellow ribbons on the town green, “Borough Of Litchfield Board: Get Those Yellow Ribbons Off Our Town Green Trees.”

For six years military mothers and their supporters have been decorating the trees on the town green with yellow ribbons. Tuesday, the Borough’s legislative board voted to ban the ribbons.

How come? One mother who asked why said she was told “…the ribbons had to be taken down because they were hurting the trees and that they looked unsightly and worn.”

Board members said that their forester had told them the ribbons were damaging the trees because mold was growing beneath them. I searched “mold on trees from ribbons” on Google and got 318,000 hits. I read the first 20 or so. None mentioned mold under ribbons. Must be something endemic to the Borough of Litchfield…perhaps the “Litchfield Yellow Ribbon Mold.” Sounds scary. Just to make sure I wasn’t missing something, I changed the search to “mold from ribbons on trees.” Another 318,000 hits. Nada.

The board identified their forester as Starling Childs from nearby Norfolk, Connecticut.

I know him. He is an expert. Check out his website. He maintains the Great Mountain Forest, all 6,000 acres, in nearby Norfolk. Here’s what he said upon hearing of the ban: “They must be confusing me with some other botanist, because I don’t remember even noticing the ribbons at all and I certainly didn’t comment on them.”

It turns out there is another reason besides the dreaded killer mold as evidenced in this board member’s statement: “What happens next? The Boy Scouts will come along and ask for their ribbons. And the Breast Cancer Awareness people will ask for their pink ribbons. Before you know it, we have this big swatch of colors and Litchfield no longer has a classic green.”

Ah, now I get it — ribbon blight.

This is not the first ban on yellow ribbons. Prince William County, Virginia’s police chief has banned them on his cruisers because he’s afraid that if his officers show up at a war protest driving cruisers with yellow ribbons “it could be seen as any action we’re going to take is against their cause.” The officers can still hang them on their own cars and in the office.

The City of San Mateo, California prohibits private displays on public property but the mayor has simply said he won’t enforce it as to yellow ribbons: “Clearly there are many laws on our books that are enforced when called to our attention, but we don’t have the resources to enforce all the laws we have until somebody brings it up.”

Fieldsboro, New Jersey banned the yellow ribbons on public property in 2003. Mayor “Buddy” Tyler explained: “Where would you draw a line if you started allowing the use of public property to exhibit whatever cause anyone wanted? Suppose someone wants to tie pink ribbons, or black flags, or a Confederate flag or a Nazi flag on public property?” I can’t find any reports of Fieldsboro reversing itself, though 100 protestors led by none other than Curtis Sliwa of the Guardian Angels have protested. The have called for the mayor’s resignation and referred to him as “Bonehead Buddy.”

So here is one of the Litchfield yellow-ribbon-banded trees, not yet stripped of its illegal decoration. This is the only place, so far as I can tell (but I’m no arborist) in the world where the Litchfield Yellow Ribbon Mold exists…

This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.